The increasing use of genetic
tests, especially as part of prenatal examinations, has resulted in the
development of a new theory of tort liabilityógenetic malpractice. This
theory falls within the broader field of medical malpractice and requires
proof of the same elements. Nevertheless, because of the nature of the
information that genetic tests uncover and the decisions that are made
on the basis of that information, genetic malpractice claims raise unique
ethical and legal concerns.

Genetic malpractice claims
are brought against physicians, nurses, other health care providers, hospitals,
and testing laboratories. Genetic malpractice claimants allege that these
individuals and entities were negligent and that this negligence resulted
in the birth of a child with a genetic disease. The alleged negligence
may be based upon the failure to recommend an appropriate genetic test,
the failure to administer the test correctly, the failure to interpret
the test accurately, or the failure to advise the childís parents of the
test results, to name just a few examples.

Genetic malpractice claims
are couched most often as wrongful birth and wrongful life actions. The
biggest differences between these two types of actions are the identities
of the claimants and their respective "rights." In a wrongful birth action,
the claimants are the childís parents. The parents assert that, but for
the health care providersí negligence, they would have had the opportunity
to decide not to conceive or, once they had conceived, not to bring the
fetus to term. In a wrongful life action, the claimant is the child. The
child, through the childís parents or guardian, asserts that, but for the
health care providersí negligence, the child would not have been born.

Wrongful birth actions raise
the following types of legal and ethical issues:

Should a genetic predisposition
be distinguished from a genetic disease in deciding whether to become pregnant
or, once pregnant, to continue the pregnancy?

Should a fetus with a genetic
abnormality be aborted?

Should the parents be required
to establish that they would have aborted the fetus had they been advised
of the fetusís true genetic status before they may bring suit or recover
damages?

Should the parentsí ability
to bring suit or recover damages be limited if they reside in a state that
prohibits abortion at the time or for the reason they would have sought
it had they been advised of the fetusís true genetic status?

Wrongful life actions raise
even more sensitive legal and ethical issues, including:

Does a person have a right not
to be born?

What is the appropriate measure
of damages where a person claims that he or she never should have been
born?

Is nonexistence preferable to
a life with a genetic disease?

If so, what does this indicate
about the value society places on persons living with genetic diseases?

Should a child born with a genetic
disease be entitled to sue his or her parents where the parents were advised
of the presence of a genetic abnormality and decided to continue the pregnancy?

The sensitivity of these issues
and their broader policy implications have led some courts and legislatures
to bar wrongful birth and wrongful life actions altogether. Minnesota,
Missouri, and Pennsylvania are among the states that bar both types of
actions. Other states, like Arizona, Illinois, and Texas, recognize wrongful
birth actions but not wrongful life actions. California, New Jersey, and
Washington are among the minority of states that allow both types of actions.

A federal district court,
applying New Jersey law, ruled a little over a month ago that the parents
of twin daughters, one of whom had a genetic disease, could bring a wrongful
birth action against an amniocentesis laboratory that allegedly misdiagnosed
genetic samples. See Provenzano v. Integrated Genetics, No. 97-1460(MLC)
(D.N.J. Oct. 13, 1998). According to the court, a laboratory that supplies
amniocentesis samples to a physician has a duty to provide accurate information
so prospective parents may decide whether to terminate the pregnancy. The
court noted that a wrongful birth action is distinct from a wrongful life
action and ruled that a wrongful birth action, in contrast to a wrongful
life action, does not require parents to prove that they would have aborted
the fetus as a prerequisite to maintaining the action. As a result, at
least in New Jersey, it appears that the third legal/ethical issue noted
above regarding wrongful birth actions has been resolved.